Monday, March 06, 2017

Senators Should Ask Gorsuch "Do You Agree wth Judge Bork About Originalism?

By Eric Segall

Last week in Vox I published a lengthy essay arguing that originalism does not and should not drive judicial decisions. In previous work, I recounted how neither Justice Thomas nor Justice Scalia voted in an originalist manner. Recently, I had occasion to re-read Judge Bork's The Tempting of America. What I found surprised me because I was expecting to find a strong case for deferential judicial review based on judges only applying the original meaning of the Constitution. What I discovered, however, was simply another judge advocating a "living Constitution" approach, criticizing the privacy line of cases including Roe v, Wade, while approving other cases like Brown v. Board of Education and New York Times v. Sullivan with hardly an intelligible or consistent principle in sight. With the Gorsuch hearings around the corner, Senators should go back and focus on what Judge Bork wrote and ask the nominee if he agrees with what Bork labelled originalism but what was really living constitutionalism in disguise.

In a Chapter titled "Objections to Original Understanding," Bork quoted at length from a decision he had written in Ollman v. Evans, a libel case dealing with the difference between fact and opinion for libel law. Bork seemed to concede that the modern constitutional law of defamation would not have been anticipated by the framers but he was in no way troubled by the fact. A lengthy quotation is required to make this point as Judge Bork did:
Perhaps the framers did not envision libel actions as a major threat to [freedom of speech]. I may grant that for the point to be made. But, if over time, the libel action evolves so that it becomes a threat to the central meaning of the first amendment, why should not judges adapt their doctrines [to protect that meaning]....To say that such adjustments must be left to the legislature is to say that changes in circumstances must be permitted gradually to render constitutional guarantees meaningless. Judges must never hesitate to apply old values to new circumstances....  Brown v. Board of Education was more generally an example of the Court applying an old principle according to a new understanding of a social situation.... A Judge who refuses to see new threats to an established constitutional value ... fails in his constitutional duty. That duty, it is worth repeating, is to ensure that the powers and freedoms the founders specified are made more effective in today's altered world. The evolution of doctrine to accomplish that end contravenes no postulate of judicial restraint.
Judge Bork no doubt knew that this explanation for modern libel law specifically and constitutional law generally would open him up to the criticism that judges could justify the creation of new constitutional principles and doctrines such as the right to abortion. He argued, however. that the "argument quoted ... does no such thing." Bork distinguished between maintaining the "vigor of an existing principle" and the "creation of a new principle by ... sleight of hand." He then said that "if one cannot see where ... the adjustment of doctrine to protect an existing value ends and the creation of new values begins, then one should not aspire to be a judge, or for that matter, a law professor."

This argument, however, doesn't even pass the straight face test as an attempt to distinguish an originalist approach from a living constitutionalist approach. Judge Bork thought it was perfectly acceptable for judges to construct modern free speech and equal protection doctrines in ways that the framers would never have anticipated because the framers did care generally about freedom of speech and equality. But raising the level of generality of those provisions to such abstract levels could justify virtually any decision a judge would want to reach. In fact, this is exactly how some "New Originalists" have justified their judgments that bans on same-sex marriages violate the original meaning of the fourteenth amendment as do bans on abortion. For "equality" and "liberty" to be meaningful in the modern world, gays and lesbians must have equal rights to marriage and women must be able to possess reproductive freedom. These aren't the creation of new rights and principles but rather the maintenance of existing ones (the principles of equality and liberty).

As noted above, Bork justified Brown v. Board of Education as the application of an old value to a "new understanding of a social situation." But the Constitution and its Amendments contain a plethora of vague aspirations that are hardly self-defining. Examples include bans on "unreasonable" searches and seizures," "cruel and unusual punishments," and laws "abridging" the freedom of speech or "establishing" religion, not to mention the vague values of "equal protection of the laws" and "due process of law." If modern judges are allowed to ignore the specific expectations of the people who ratified those provisions, as the Brown Court did, in the service of "maintaining the vigor of an existing principle," then the original meaning of the Constitution is largely irrelevant to constitutional adjudication.

Judge Bork's theory of constitutional  interpretation makes a lot of sense. Of course judges need to enforce the Constitution's grand principles with an eye towards today's values including changed "social conditions." That is why gays and lesbians deserve full protection under the equal protection clause despite the undeniable fact that the original meaning of the clause did not include gays and lesbians (or even women). But the only thing "originalist" about this approach is a symbolic nod towards a vague and general principle adopted by the framers. That kind of nod simply does not decide hard cases and does not amount to taking original meaning seriously.

Judge Gorsuch claims to be an originalist, and there is little doubt that GOP Senators will throw that word around a lot throughout the hearings that begins on March 20. But wearing the label is not the same thing as employing it in real life cases. Senators should ask Gorsuch if he agrees with Bork's specific method of constitutional interpretation and how he would apply that method to specific constitutional controversies including the right to abortion. He should not be allowed to run and hide from that conversation but that, alas, is a topic for another day.


Joe said...

"the undeniable fact that the original meaning of the clause did not include gays and lesbians (or even women)"

Various articles can be cited to challenge this "undeniable fact." I did not read an article Prof. Segall said he wrote recently, but I gather (from past readings) it would turn on definitions. Suffice to say, it is important to clarify what exactly Gorsuch believes it would mean if it is something he would find necessary to apply.

I don't think it matters on a basic level -- again the point here is fully understand how judicial nominees understand it -- but the extreme phrasing doesn't to me work. A judge in the 1870s, I gather, would use current understandings to determine reasonableness. So, women could be denied law licenses. But, even there, women etc. had some minimum level of right to equal treatment.

It would be unlikely some extreme case would arise that a judge would strike down, but that only shows some bare minimum was so widely accepted that it wouldn't come up. For instance, a women had basic rights to be an author. A law that said "only men can be authors" would not only violate freedom of speech. It would be unreasonable under the Equal Protection Clause. But, know of no such law.

Greg said...

I'll play devil's advocate a little bit here.

One could make a pretty convincing argument that a "right to privacy" is an exclusively judge-made right, that is distinguishable from rights that are explicit in the constitution like equal protection or freedom of speech. I understand the argument that the right to privacy is implicit in the right to be free of unreasonable searches and seizures, but the right to privacy really exists at a level of abstraction beyond applying equal protection to new social situations.

As such, there is a reasonable constitutional interpretation that applying the equal protection clause in new scenarios (such as gay rights) is an application of clear constitutional values, but trying to create a meta-right to privacy is not acceptable.

To be fair, I don't know of anyone who actually interprets the constitution this way, but it would be a reasonable way to do so, and consistent with the quotation from Judge Bork.

Eric Segall said...

Maybe a right to privacy would be judge made but the right to an abortion could easily be found by an "originalist" judge in the equal protection clause. Judge Bork would have been no happier.

Joe said...
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Joe said...

If "implicit" is used, the argument is often that the right to privacy is implicitly a result of a range of rights. For instance, the privacy of associations, NAACP v. Alabama a common reference. Is use of money to advance speech interests an abstraction any less than that? Enough for a different rule?

Basically, we are dealing with line drawing that is not explicitly in the Constitution itself when formulating, even as devil's advocates, these rules. Maybe, it is reasonable to do so, but it's best to be honest about what is being done.

And, yes, equal protection or even the 13th Amendment (Andrew Koppelman is but one person who makes that case) can be used to defend the right to an abortion. But, the level of abstraction principle wouldn't just apply to the right to privacy. Conservative friendly rights can be cited. So, applying the rule would not necessarily be useful to one particular side. Again, in theory, maybe it would work.